Ontario Court of Justice

Date: June 21, 2023

Between:

HIS MAJESTY THE KING

— AND —

DAYLO ROBINSON

Before: Justice Louise A. Botham

Ruling on Crown 714.1 Application

Counsel: S. Orlando, counsel for the Crown M. Salih, counsel for the defendant Daylo Robinson

BOTHAM J.:

[1] The Crown has applied for an order permitting Lisa Horton to testify by video conference at the trial of Daylo Robinson.

[2] An Affidavit of George Jiri was filed in support of this application.

[3] Lisa Horton resides in Lower Sackville, Nova Scotia. She would prefer to testify in Nova Scotia by video conference, rather than have to travel to Toronto to testify in person.

[4] Mr. Robinson is charged with two counts of breaching a court order. Both breaches allege that he had contact with Rebecca Horton in contravention of a court order.

[5] Lisa Horton will be the primary witness. I understand she will testify with respect to observations made by her which the Crown says will prove that Mr. Robinson interacted with Rebecca Horton.

[6] The Respondent is opposed. The Respondent submits that the material set out in the Applicant’s Affidavit establishes nothing more than it would be more convenient for Lisa Horton to remain in Nova Scotia and testify remotely. It is submitted that mere inconvenience is not sufficient to displace the presumption that witnesses will testify in person.

[7] Notwithstanding various assertions in George Jiri’s affidavit, I agree that the real basis for seeking this order is to convenience this witness. I also agree that in general such an assertion may well not suffice to support the making of this order.

[8] In this case however I am prepared to make the order with certain conditions. I am prepared to do so because, although Lisa Horton is the main Crown witness, it would appear that her evidence is fairly constrained. She is testifying with respect to conduct by Rebecca Horton, which she has observed. I am satisfied that with the proper safeguards, both technically and situationally, that Mr. Robinson can make full answer and defence. In granting this order, I am also taking into consideration one factor, not necessarily delineated in the section. We are experiencing severe staffing shortages in our new Toronto courthouse. Today, alone, we have had to close 14 courts. This is a daily occurrence for us. Although I would hope that priority would be given to Mr. Robinson’s matter, given that he is in custody and we would have an out-of-town witness, I cannot be certain that would be the case. Also, I have no reason to believe that the staff shortages that we have been experiencing will not be ongoing for the foreseeable future. I would not want to see Ms Horton travel to Toronto only to discover that the matter cannot proceed.

[9] Given all of that, I am prepared to permit Lisa Horton to testify by video conference. However she will testify at a courthouse, so that the appropriate measures can be taken to ensure that the solemnity of these proceedings is preserved. If that cannot occur for the July 14th trial date than Ms. Horton will be required to attend in person to testify.

Released: June 21, 2023 Justice Louise A. Botham